PUBLIC UTILITY COMMISSION
Harrisburg, PA 17105-3265
Public Meeting held October 23, 2014
Commissioners Present:
Robert F. Powelson, Chairman
John F. Coleman, Jr., Vice Chairman
James H. Cawley
Pamela A. Witmer, Dissenting Statement
Gladys M. Brown
Application of Lyft, Inc., a corporation of the State of Delaware, for the right to begin to transport, by motor vehicle, persons in the experimental service of Transportation Network Company for passenger trips between points in Allegheny County Between Points in Allegheny County, PA / Docket No. A-2014-2415045
Petition of Kim Lyons and PG Publishing, Inc d/b/a The Pittsburgh Post-Gazette for an Interim Emergency Order / Docket No. P-2014-2442001
Application of Lyft, Inc., a corporation of the State of Delaware, for the right to begin to transport, by motor vehicle, persons in the experimental service of Transportation Network Company for passenger trips between points in Pennsylvania / Docket No. A-2014-2415047
ORDER REGARDING
PROPRIETARY INFORMATION CLAIMS
BY THE COMMISSION:
Before the Commission are two Petitions: (1) a Petition for Interim Emergency Order (PPG Petition) filed by Kim Lyons and PG Publishing, Inc., d/b/a The Pittsburgh Post-Gazette (PPG, collectively); (2) and a Petition for Interlocutory Review and Answer to a Material Question (Lyft Petition), filed by Lyft, Inc. (Lyft). Because both petitions include issues regarding certain information that is claimed to be proprietary, we have consolidated them for decision.
By way of background, on April 3, 2014, Lyft filed two separate applications for authority to provide experimental transportation service, one application covering Allegheny County and the other application covering all of Pennsylvania. 52 Pa. Code §29.352. The applications were published in the Pennsylvania Bulletin on April 19, 2014. Various protests to the applications were filed and the applications are pending before the Commission for appropriate disposition.
During the course of the proceedings before the Administrative Law Judges (ALJs) assigned to the cases, an Interim Order was issued on July 31, 2014, requesting evidence be presented on the following:
(1) The number of transactions/rides provided to passengers in Pennsylvania via the connections made with drivers through Internet, mobile application, or digital software during the following periods:
(a) From the initiation of Lyft’s service in Pennsylvania to June 5, 2014 (the date I&E filed the Complaint against Lyft);
(b) From June 5, 2014, to July 1, 2014 (the date the Cease and Desist Order became effective); and
(c) From July 1, 2014, to the date on which the record in this Complaint proceeding is closed.
Subsequently, hearings were held before the ALJs on the applications. During the course of those proceedings, Lyft filed a Petition for Protective Order on August 29, 2014, whereby Lyft requested that certain information be treated as confidential or proprietary. Specifically, Lyft requested that the data requested by the July 31 Interim Order be treated as proprietary. Additionally, Lyft requested that its insurance policies and the proposed Form E certificate of insurance also be treated as proprietary.[1]
In response to Lyft’s Petition for Protective Order, the Insurance Federation of Pennsylvania, Inc., and JB Taxi, LLC, Protestants to Lyft’s application, filed objections. On September 2, 2014, the ALJs issued an Interim Order on Motion for a Protective Order, which denied Lyft’s request for a protective order with the exception of the dollar amounts paid for insurance coverage.
On September 3, 2014, the ALJs held an additional hearing in this matter. During the course of that hearing, the issue arose regarding the disposition of Lyft’s Petition for a Protective Order. Lyft indicated that it wished to preserve that issue for Commission review, and that imposing disclosure immediately would make it impossible for it to do so. In response, the ALJs determined that under the unique circumstances of this case, it was appropriate to hold the disclosure required by the September 2, 2014 Order in abeyance, pending disposition of the Commission’s review of that issue. At that point in the hearing, Kim Lyons (a reporter for the Pittsburgh Post-Gazette) was directed to leave the hearing room while the testimony surrounding the subject matter of the requested Protective Order was taken. PPG challenged removal, but did not prevail on its challenge. Subsequently, PPG filed the current Petition.
In response to PPG’s Petition, the Commission issued a Secretarial Letter on September 10, 2014, which, inter alia, directed the parties and PPG to address all relevant factors, as set forth at 52 Pa. Code § 5.423 (recodified at §5.365), regarding orders to limit the availability of proprietary information. In response to the Secretarial Letter, Lyft filed an Answer to the PPG Petition on September 15, 2014, to which PPG filed a response on September 18, 2014. On October 7, 2014, Lyft filed a Reply to New Matter to PPG’s response. On October 10, 2014, PPG filed a Motion to Strike Lyft’s Reply to New Matter. This matter is now before the Commisison for disposition.
Subsequently, on September 23, 2014, Lyft filed a Petition seeking interlocutory review of the disclosure required by the ALJs’ September 2, 2014 Order. Lyft’s Petition effectively re-addressed the issues it was directed to address by the September 10, 2014 Secretarial Letter. On September 26, 2014, JB Taxi LLC, a protestant to Lyft’s application, filed a motion to strike Lyft’s Petition. Also on September 26, 2014, PPG requested, by letter to the Secretary of the Commission, that the Commission not consider Lyft’s Petition with the PPG Petition or, in the alternative, allow PPG to respond to the Lyft Petition. By Secretarial letter dated September 29, 2014, the Commission granted PPG the right to respond to Lyft’s Petition.[2] On October 2, 2014, PPG filed a response to the Lyft Petition.
Discussion
A. PPG’s Petition for Interim Emergency Order
PPG’s Petition is couched as a petition for interim emergency relief. Our regulations governing interim emergency relief provide, in relevant part:
§ 3.6. Petitions for interim emergency orders.
(a) A party may submit a petition for an interim emergency order during the course of a proceeding. The petition shall be filed with the Secretary and served contemporaneously on the Chief Administrative Law Judge and on the parties.
(b) To the extent practicable, a petition for an interim emergency order must be in the form of a petition as set forth in § 5.41 (relating to petitions generally). A petition for an interim emergency order must be supported by a verified statement of facts which establishes the existence of the need for interim emergency relief, including facts to support the following:
(1) The petitioner’s right to relief is clear.
(2) The need for relief is immediate.
(3) The injury would be irreparable if relief is not granted.
(4) The relief requested is not injurious to the public interest.
(c) Allegations set forth in the petition shall be deemed to have been denied by the opposing parties, and an answer is not required. A party may file an answer in the form set forth in § 5.61 (relating to answers to complaints, petitions and motions) no later than 5 days after service of a copy of the petition.
(d) Other pleadings, memoranda or briefs related to a petition for interim emergency order are not permitted unless specifically requested by the presiding officer.
Additionally, our regulations governing treatment of proprietary information provide, in relevant part:
§ 5.365. Orders to limit availability of proprietary information.
(a) General rule for adversarial proceedings. A petition for protective order to limit the disclosure of a trade secret or other confidential information on the public record will be granted only when a party demonstrates that the potential harm to the party of providing the information would be substantial and that the harm to the party if the information is disclosed without restriction outweighs the public’s interest in free and open access to the administrative hearing process. A protective order to protect trade secrets or other confidential information will apply the least restrictive means of limitation which will provide the necessary protections from disclosure. In considering whether a protective order to limit the availability of proprietary information should be issued, the Commission or the presiding officer should consider, along with other relevant factors, the following:
(1) The extent to which the disclosure would cause unfair economic or competitive damage.
(2) The extent to which the information is known by others and used in similar activities.
(3) The worth or value of the information to the party and to the party’s competitors.
(4) The degree of difficulty and cost of developing the information.
(5) Other statutes or regulations dealing specifically with disclosure of the information.
In its Petition, PPG argues that an emergency situation exists warranting issuance of an order to unseal a portion of the record of the September 3, 2014 hearing. PPG argues that it has a right to access the sealed record, citing the Common Law right of access, the First Amendment to the United States Constitution, and the Pennsylvania Constitution. Additionally, PPG argues that the Public Utility Code explicitly provides that hearings are to be public. 66 Pa. C.S. §703(c). PPG argues that it will be irreparably harmed if it is denied access to the sealed testimony, since it was not provided the right to be heard prior to sealing the record.
PPG also alleges that unsealing the record will not be injurious to the public interest, since the Public Utility Code provides that Commission hearings are to be open to the public. PPG requests the Commission (1) unseal the September 3, 2014 record in its entirety; (2) direct the OALJ to grant PPG intervenor status for the limited purpose of opposing any attempts to close any future hearings; and (3) direct that if any party seeks to close the hearings and seal the record, that party must provide two-days’ notice to all parties as well as PPG.
In response to PPG’s Petition, Lyft argues that the data at issue is proprietary, because it could be used by Lyft’s competitors to model and forecast Lyft’s activities in other markets. Lyft argues that the presumption of public access is not absolute and is rebuttable. Storms v. O’Malley, 779 A.2d 548 (Pa. Super., 2001). To meet this burden, a party must show that disclosure will work a clearly defined and serious injury to the party seeking closure. Publicker Industries, Inc. v. Cohen, 733 F.2d 1059 (3rd Cir. 1984).
Lyft also argues that PPG failed to demonstrate that its need for relief is immediate, since the sealed portion of the testimony will be reviewed by the Commission in due course. Lyft argues that PPG failed to show that any injury would be irreparable. To the contrary, Lyft argues that it will suffer irreparable harm if proprietary information is prematurely and improperly revealed to the public. Finally, Lyft alleges that PPG failed to demonstrate that the requested relief is not injurious to the public interest. Lyft notes that there are exceptions to public disclosure for proprietary information and that the public interest would be harmed by disclosure prior to Lyft fully exercising its rights to have the information declared proprietary.
In the present case, we are not persuaded that PPG has satisfied its burden under our regulations to establish that interim emergency relief is warranted. Because there are no further hearings scheduled in this matter, there is no present “emergency” that requires immediate action by the Commission. The record in this matter has been closed and only 6 pages of transcript are presently sealed pursuant to the ALJs’ order.[3] In addition, while we do not dispute the general rule that our hearings are generally open to the public, this requirement does not exist in a vacuum and must be weighed against a party’s legitimate interest in protecting proprietary information. In re Estate of Du Pont, 2 A.3d 516 (Pa. 2010). As explained in Hutchison v. Luddy, 611 A.2d 1280 (Pa. Super. 1992), the common law right of access is not absolute, and the court may, if appropriate, exclude the public from court proceedings or records of the court “to protect private as well as public interests: to protect trade secrets, or the privacy and reputations [of innocent parties], as well as to guard against risks to national security interests, and to minimize the danger of an unfair trial by adverse publicity." Id. at 1290 (emphasis added).
Indeed, the Commission’s regulations have long recognized that certain information addressed in our administrative proceedings may be trade secrets or otherwise confidential such that public disclosure would likely cause competitive harm to the party providing the information or unfair economic advantage to the party’s competitors. 52 Pa. Code § 5.365. This same exemption for proprietary information is recognized in Pennsylvania’s Right to Know Law which exempts from public disclosure information which would “cause substantial harm to the competitive position of the person that submitted the information. 65 P.S. §67.102. In sum, the right to public access is not absolute.
Applying the standards for interim emergency relief set forth in 52 Pa. Code §3.6(b), the Commission finds that under the circumstances presented, PPG has not met its burden. First, while PPG certainly has a right to state its position regarding whether a particular hearing segment should be open, the underlying merits of its argument are another matter. We agree with Lyft that the harm potentially caused by prematurely disclosing arguably proprietary information in the administrative process, is significant. As such, PPG’s right to relief is not clear.